PEOPLE LUNGREN v. AMERICAN STANDARD INC (1995)

OPINION

The Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf.Code, §§ 25249.5–25249.13),¹ adopted by vote of the people at the November 1986 election as Proposition 65 (hereinafter sometimes referred to as “the Act”), provides in material part that “[n]o person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water․”  (§ 25249.5.)   This case requires us to define what is meant by the phrase “source of drinking water.”

Acting by and through the Attorney General, plaintiffs filed an action in superior court alleging that defendants have violated Proposition 65, in that each knowingly discharged or released a proscribed chemical into a source of drinking water.

The 16 named defendants manufacture and distribute the majority of drinking water faucets sold and used in California.   Lead, which is among the substances listed by the state as known to cause cancer or reproductive toxicity within the meaning of Proposition 65 (see § 25249.8;  22 Cal.Code of Regs., § 12000), is assertedly contained in many of the faucets defendants produce and leaches into the tapwater that passes through these fixtures.   Defendants demurred to the first and second causes of action,² arguing that household drinking water is not a “source of drinking water” within the meaning of the statute, and that plaintiffs had therefore failed to allege facts constituting a cause of action.

The trial court sustained the demurrer to the first two causes of action, determining that “residential water faucets and the water within them are not ‘sources of drinking water.’ ”   Although the trial court sustained the demurrer with leave to amend, plaintiffs contend it is not possible to amend the complaint within the constraints of the trial court's order.   After the Attorney General sought a writ of mandate from this court, we issued an order directing defendants, as real parties in interest, to show cause why a peremptory writ of mandate should not issue directing the superior court to vacate the order sustaining the demurrer and to enter an order overruling the demurrer and compelling defendants to answer the complaint.

Discussion

 “Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action.   Accordingly we assume that the complaint's properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.  [Citations.]  We do not, however, assume the truth of contentions, deductions, or conclusions of fact or law.”  (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479.)   We are not bound by the construction of the pleading determined by the trial court but must make our own independent determination, even as to matters not expressly ruled on by the trial court.  (Marina Tenants Assn. v. Deauville Marina Development Court (1986) 181 Cal.App.3d 122, 127, 226 Cal.Rptr. 321.)

Although they both appeal to “common sense,” the parties advance sharply conflicting views as to what is meant by the phrase “source of drinking water.”   According to the Attorney General, “[t]he common sense meaning” of the phrase “is the place from which people presently get the water they drink.   For the great majority of consumers, this is the water drawn from their household faucets.   The dictionary defines ‘source’ as ‘that from which anything comes forth.’  [Citation.]  ․ [T]herefore, ‘source of drinking water’ means the point from which drinking water is acquired or obtained—which under any common sense reading is the faucet in a person's home.”   The Attorney General suggests that if the faucets from which almost everyone obtains drinking water are exempted from the discharge prohibition, this critical provision of Proposition 65 can be rendered ineffectual.

Defendants answer that the Attorney General's view “has nothing to do with common sense, and is at odds with the plain language of the Act and basic rules of statutory construction.”   According to defendants, “source of drinking water” refers to “California's lakes, rivers, streams and ground waters,” not faucets.   Defendants insist that “[t]apwater is not a ‘source of drinking water,’ it is drinking water,” and that the Attorney General has read the word “source” out of the statute.

I.

We look first to the language of the Act itself to discern the meaning of the words in question.  “Source of drinking water” is defined in section 25249.11, subdivision (d), as “either a present source of drinking water or water which is identified or designated in a water quality control plan adopted by a regional board as being suitable for domestic or municipal uses.”  (Emphasis added.)   Unfortunately, this definition does not resolve the issue with which we are presented.

Emphasizing the either/or aspect of the definition, the Attorney General argues that a “present source of water” is different from water “identified or designated in a water quality control plan.”   While the latter category refers to bodies of water physically located in the natural environment and in specified man-made facilities which are regulated by regional water quality control boards ³ —the Attorney General contends this reference was made simply to insure application of Proposition 65 to future sources of drinking water, not for the purpose of limiting its present application to such physical bodies of water.   Thus, the Attorney General concludes, the statutory definition is fully consistent with his “common sense” view that a faucet is a present source of drinking water within the meaning of Proposition 65.

Defendants argue that the first phrase of subdivision (d) of section 25249.11 (“present source of drinking water”) must be read in conjunction with the second phrase (water “identified ․ in a water quality control plan”).   The distinction between the two is only temporal, they say, because both address the same type of “source,” namely, the surface and groundwaters of the state, as distinguished from tapwater.

The trial court agreed with defendants that “residential water faucets and the water within them are not ‘sources of drinking water’ ” within the meaning of the Act.   Adopting defendants' reasoning, the court stated that the first definition of “source of drinking water” set forth in section 25249.11, subdivision (d) (i.e., “a present source of drinking water”) must be qualified by the second (i.e., “water which is identified or designated in a water quality control plan adopted by a regional board as being suitable for domestic or municipal uses”), because “[i]f the ‘present source’ definition stands alone and unqualified, it simply creates a tautology.”   The question the trial court thought presented for decision was “whether a faucet is within the scope of or sufficiently similar to those waters within a regional [water quality control] board's jurisdiction.”

 We reject the Attorney General's position that a faucet is a present source of drinking water under the Act.   His analysis would neologize the word “source”—indeed, it would virtually excise it from the Act.   We conclude the unambiguous, straight-forward language of the Act, its history and the implementing regulations make it clear that section 25249.5 is limited to prohibiting the discharge or release of listed chemicals into California lakes, rivers, streams, ground waters, and man-made storage facilities and aqueducts—the origins of drinking water.⁴

In reaching this conclusion, we do not dispute the claim that there may be sound scientific reasons to ban and ultimately eliminate brass fixtures from household and public accommodation water supply systems, as the amicus brief for both the Alliance to End Childhood Lead Poisoning and the American Public Health Association contend.   Rather, we simply conclude that Proposition 65 did not do so and that a decision of such magnitude must come from the electorate or the Legislature.   We note in passing that incremental approaches to far-reaching social policy enactments are a common legislative practice.   It is noteworthy that the Act includes a specific provision allowing the Legislature, by two-thirds vote, to amend it to “further its purposes.”  (See Historical and Statutory Notes, 40C West's Ann.Health & Saf.Code (1992 ed.) § 25249.5, pp. 155–156.) ⁵

II.

The Attorney General argues that the language following the word “or” in subdivision (d) of section 25249.11, was intended by the drafters “to assure that other sources, which are not at present used for drinking, would be protected.”   Thus, he claims this reference to “water which is identified or designated in a water quality control plan adopted by a regional board as being suitable for domestic or municipal uses “means only future water sources, not those presently in use.”   From this, he argues that the first reference in the definition to “present source of drinking water” must be interpreted expansively or it would otherwise be meaningless—in his words, “the result would be no different than if the term had been omitted completely.”   The difficulty with this logic is that the Porter–Cologne Water Quality Control Act to which section 25249.11 refers, is not limited to future water sources.   That Act was adopted in 1969 (Wat.Code, § 13000 et seq.) and created the Regional Water Quality Control Boards (Wat.Code, § 13200) which have jurisdiction to regulate water quality as to past, present and future sources (Wat.Code, § 13241).   Thus, there is no reason to believe that the drafters of Proposition 65 thought otherwise and intended that this alternative reference was limited solely to future sources.   More importantly, as we will shortly point out, it is the voters' intent, not the drafters intent, which counts.

The Attorney General also argues that the Porter–Cologne Act and other facets of the regulatory scheme for water quality “contains an enormous loophole for lead-leaching faucets” and that the clear intent of Proposition 65 was to close that as well as other “loopholes.”   Thus he contends that the Act was intended to toughen existing water quality standards, not just to mimic the standards allowable under the Porter–Cologne Act.   We fully agree the voters intended to enact a tougher law.   They did.   In addition to the discharge prohibition, the Act added a far-reaching warning requirement, mandates annual publication of a listing of chemicals known to cause cancer or reproductive toxicity, added civil and criminal penalties, and substantially increased the penalty for unlawful disposal of hazardous waste.   It also authorized civil injunctive actions (such as the instant one) brought by the Attorney General, district attorneys, and, in some circumstances, by “․ any person in the public interest.”  (§§ 25180.7, 25189.5, 25249.7.)   It does not follow, however, that an expansive interpretation of the term “source of drinking water” must be found simply because the voters enacted a tough law.   We will move on to examine the traditional sources of voter intent.

III.

“Basic to all statutory construction ․ is ascertaining and implementing the intent of the adopting body.  [Citations.]”  (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 543, 277 Cal.Rptr. 1, 802 P.2d 317.)   With respect to an initiative adopted directly by the people, as we have here, it is the intention of the voters upon which we must focus.   Ordinarily their purpose can best be gleaned from the information contained in the ballot pamphlet sent to all registered voters and the language of the entire enactment, which is set forth in that pamphlet.

“As stated in Lesher Communications, Inc., [supra,] ․ ‘we presume that the voters intended the meaning apparent on the face of an initiative measure;’  and the reviewing court may not ‘rewrite it to conform to an assumed intent that is not apparent in its language.’  [Citation.]  In the same vein, courts have repeatedly cautioned that in construing voter-approved measures, ‘words must be understood, not as the words of the civil service commission, or the city council, or the mayor, or the city attorney, but as the words of the voters who adopted the amendment.   They are to be understood in the common popular way, and, in the absence of some strong and convincing reason to the contrary, ․ they are not to be considered in a technical sense inconsistent with their popular meaning.  [Citation.]’  (AIU Ins. Co. v. Gillespie (1990) 222 Cal.App.3d 1155, 1159 [272 Cal.Rptr. 334], and cases cited therein internal quotation marks omitted.)”  (San Francisco Police Officers Association v. City and County of San Francisco (1994) 29 Cal.App.4th 648, 653, 34 Cal.Rptr.2d 830.)

 Ballot arguments constitute the primary source of voter intent and understanding of a ballot measure.  (Legislature v. Deukmejian (1983) 34 Cal.3d 658, 673, fn. 14, 194 Cal.Rptr. 781, 669 P.2d 17;  Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 246, 149 Cal.Rptr. 239, 583 P.2d 1281;  Nicolle–Wagner v. Deukmejian (1991) 230 Cal.App.3d 652, 659, 281 Cal.Rptr. 494;  AFL–CIO v. Deukmejian (1989) 212 Cal.App.3d 425, 436, 260 Cal.Rptr. 479;  cf. Note, Interpreting the Purposes of Initiative:  Proposition 65 (1989) 40 Hastings L.J. 1031, 1046–1048.)   The official voter pamphlet included an analysis by the Legislative Analyst.   It first described then existing programs designed to protect people against exposure to harmful chemicals.

“Background [¶] ․

• Waste Discharges.   The State Water Resources Control Board and the regional water quality control boards regulate the discharge of wastes into state waters, including rivers, streams, and groundwater that may be used as sources of drinking water.   The Department of Health Services regulates the disposal and cleanup of hazardous waste, including hazardous waste that may contaminate drinking water.

• Drinking Water.   Current law prohibits local water agencies from supplying drinking water to the public that contains dangerous levels of certain harmful chemicals.   Local water agencies must inform customers when the level of these chemicals exceeds certain limits.   The Department of Health Services enforces these limits.”  (Emphasis added.)

The analysis then goes on to describe the effect of Proposition 65.

“Proposal

This measure proposes two additional requirements for businesses employing 10 or more people.   First, it generally would prohibit those businesses from knowingly releasing into any source of drinking water any chemical in an amount that is known to cause cancer or in an amount that exceeds 1/1000th of the amount necessary for an observable effect on ‘reproductive toxicity.’   The term ‘reproductive toxicity’ is not defined.   Second, the measure generally would require those businesses to warn people before knowingly and intentionally exposing them to chemicals that cause cancer or reproductive toxicity.   The measure would require the state to issue lists of substances that cause cancer or reproductive toxicity.

Because these new requirements would result in stringent standards, the practical effect of the requirements would be to impose new conditions for the issuance of permits for discharges into sources of drinking water.   In order to implement the new requirements, state agencies that are responsible for issuing permits would be required to alter state regulations and develop new standards for the amount of chemicals that may be discharged into sources of drinking water.

The measure also would impose civil penalties and increase existing fines for toxic discharges.   In addition, the measure would allow state or local governments, or any person acting in the public interest, to sue a business that violates these rules.”  (Emphasis added.)

Major proponents of Proposition 65 concluded their argument concerning the discharge prohibition by saying, “Effectively, it tells businesses:  Don't put these chemicals into our drinking water supplies.”  (Emphasis added.)   The foregoing describes a prohibition on the discharge of listed carcinogens and toxins into bodies or supplies of drinking water.   Terminal brass plumbing fixtures are simply not the focus of the proposition.   Certainly the proponents did not believe the Act included a ban on brass plumbing fixtures.⁶

 In addition to the rule requiring a common popular sense construction of an initiative measure adopted by the voters, we must also apply the rule that “․ unless the context clearly requires otherwise, we must assume that the meaning of a term or phrase is consistent through [an] entire act․”  (Hayes v. Commission on State Mandates (1992) 11 Cal.App.4th 1564, 1595, 15 Cal.Rptr.2d 547.)   Thus, when a word or phrase has been assigned a particular meaning in one part of a law, it is to be given the same meaning in other parts of the law (Freitas v. County of Contra Costa (1994) 28 Cal.App.4th 163, 171, 33 Cal.Rptr.2d 406;  City of Sacramento v. State of California (1984) 156 Cal.App.3d 182, 197, 203 Cal.Rptr. 258.)   This fundamental cannon of construction does not permit a “source of drinking water” to be expanded from a physical body of water to the plumbing used in the distribution of water to users.   Thus, even if we accept the Attorney General's position that the reference to the Porter–Cologne Act simply means a “future” source of water, the specific definition of “future” source must attach to a “present” source—that is, “present source” means those bodies of water “identified or designated in a water quality control plan adopted by a regional board․”  (§ 25249.11, subd. (d).)

 In addition to the voter pamphlet arguments and application of rules of construction to determine voter intent, there is more.   Importantly, following the enactment of Proposition 65, the administrative agencies and boards responsible for implementation took positions which directly track the ballot pamphlet.   This court also looks to agency interpretation to determine intent.  (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 425, 261 Cal.Rptr. 384, 777 P.2d 157.)   The State Water Resources Control Board adopted a resolution in May 1988 captioned, “Adoption of Policy entitled ‘Sources Of Drinking Water.’ ”   The policy included a definition of “sources of drinking water.”   It read:

“WHEREAS:

“․

“5. ‘Sources of drinking water’ shall be defined in Water Quality Control Plans as those water bodies with beneficial uses designated as suitable, or potentially suitable, for municipal or domestic water supply (MUN);  and,

“6. The Water Quality Control Plans do not provide sufficient detail in the description of water bodies designated MUN to judge clearly what is, or is not, a source of drinking water for various purposes.

“THEREFORE BE IT RESOLVED:

“All surface and ground waters of the State are considered to be suitable, or potentially suitable, for municipal or domestic water supply and should be so designated by the Regional Boards[ ] with the exception of:  ․”  (Emphasis added.)

Thus, the Board understood that a “source of drinking water” was a body of water which supplied or would supply drinking water.

The California Department of Health Services is the lead agency charged with implementing the Act.  (Ingredient Communication Council, Inc. v. Lungren (1992) 2 Cal.App.4th 1480, 1485, 4 Cal.Rptr.2d 216.)  “One of [the] Agency's functions is to issue public rulings on the requirements of the Act.”   The department provides “interpretative guideline[s],” “safe-use determination[s],” and “information letter[s]” in response to inquiries from individuals and organizations.  (Cal.Code Regs., tit. 22, Article 1, Preamble, § 12102.)   The regulations include refined definitions of provisions of the act under the “Guidelines And Safe–Use Determination Procedures.”   Under the sub-heading “Discharge or Release to Water or Land,” the regulations define “water” to include “both surface and ground water.”  (Cal.Code Regs., tit. 22, § 12201, subd. (e)(1).)   Significantly, when the regulations were promulgated in 1988, the department published its official Statement of Reasons, explaining that the discharge prohibition of section 25249.5 was limited to the surface and ground waters of the state.   The explanation recited:

“This definition is intended to clarify several aspects of the Act's prohibition on discharging listed chemicals onto or into land where such chemicals pass or probably will pass into a source of drinking water.   As proposed by the lead agency, it would have clarified that ‘water’ and ‘source of drinking water’ include both surface and groundwater.   However, this provision has been amended to define only the term ‘water’, the Act already provides that ‘source of drinking water’ includes ‘water which is identified or designated in a water quality control plan adopted by a regional board as being suitable for domestic or municipal uses'.   This includes both surface and groundwater.”

The Statement of Reasons also commented on a request that there be a further definition of the phrase “source of drinking water.”   It explained:

“One commentator objected to this provision on the ground that ‘source of drinking water’ should not include all surface and groundwater, but only water which people will drink.”  (Exh. 6, pp. 17–18.)   It is clear, however, that ‘source of drinking water’ applies to water which, in the view of the regional water quality control boards, may be suitable for drinking, even though it is not at present used as a source of drinking.  (Health and Safety Code § 25249.11, subd. (d).)  The purpose of the Act is to keep listed chemicals out of present and potential drinking water supplies.  (See ballot Argument in Favor of Proposition 65.)   The deletion of ‘source of drinking water’ in this sentence should not be construed to mean that ‘source of drinking water’ does not include both surface and groundwater.

“The definition also clarifies that a discharge to land which is in hydraulic continuity with a source of drinking water probably will pass to that source whether or not it is upgradient or upstream.”  (Emphasis added.)

The “commentator” referred to in the first sentence was apparently a group of industry, business and agricultural interests called the Environmental Working Group.   It sought to have the department define “a source of drinking water as ‘water ․ at a point where it is or could be withdrawn for use.’ ”  (See, Note, California's Toxics Initiative:  Making It Work (1988) 39 Hastings L.J. 1195, 1205, fn. 76, and sources cited therein.)   Thus, in adopting its regulations, the department rejected the very interpretation the Attorney General urges.

In an amendment to the Statement of Reasons, the department also commented on another request to define the phrase “source of drinking water.”   It observed:  “This definition is not necessary because the term is already adequately defined in the Act at Health and Safety Code section 25249.11, subsection (d) and any further definition could cause unnecessary confusion.   The designations in the regional water quality control plans mentioned in the Act provide sufficient guidance on which specific bodies of water are protected under the Act.”  (Emphasis added.)   It is thus abundantly clear that the Department of Health Services interpreted the phrase “source of drinking water,” whether present or future, to mean the bodies of water designated by regional water quality control plans as suitable for domestic consumption.   We attach great weight to this construction.  (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist., supra, 49 Cal.3d at p. 425, 261 Cal.Rptr. 384, 777 P.2d 157.)

 Shortly after the regulations were promulgated, a trade association on behalf of the real parties in interest sought a formal “interpretative guideline” which would exempt plumbing products altogether from the provisions of Proposition 65.   While declining to grant a blanket exemption, the response by Dr. Steven Book, science advisor to the Secretary of the Health and Welfare Agency, recited:

“The Agency has never taken the position that the leaching of chemicals from a private plumbing facility into water within the facility constitutes a discharge into a ‘source of drinking water.’   The term ‘source of drinking water’ appears to refer to the geographic sources of water, whether used as a present source of drinking water, or simply designated by a regional water quality control board as suitable for domestic or municipal use.”   (Emphasis added.) 7

The Attorney General dismisses this authoritative interpretation as deserving of no weight because it was never made known to the interested public or in the manner required by the Administrative Procedures Act.   He relies upon inapposite authority.   Neither Armistead v. State Personnel Board (1978) 22 Cal.3d 198, 149 Cal.Rptr. 1, 583 P.2d 744, nor Grier v. Kizer (1990) 219 Cal.App.3d 422, 268 Cal.Rptr. 244, require that the opinion letter of Dr. Book be discounted.   Both cases considered the promulgation of new regulations which are subject to the Administrative Procedure Act.   What occurred in this instance is simply an agency interpretation of existing regulations.   We are not presented with an agency engaged in rule making.   Rather, the letter opinion simply interpreted and applied existing rules to a particular situation.   As such, we give weight to that interpretation.  (See, e.g., Aguilar v. Association for Retarded Citizens (1991) 234 Cal.App.3d 21, 27–28, 285 Cal.Rptr. 515.)⁸

As the foregoing describes, the agencies charged with the implementation of the Act uniformly and consistently regarded the phrase “source of drinking water” to mean bodies of water designated by regional water quality control boards as fit for domestic use.   We agree with that interpretation.

IV.

 Lastly, if there is ambiguity in the meaning of the phrase “source of drinking water,” it must be construed against the state and in favor of the party against whom the statute is to be applied because the law is penal in nature.  (See People v. King (1978) 22 Cal.3d 12, 23, 148 Cal.Rptr. 409, 582 P.2d 1000;  In re Atiles (1983) 33 Cal.3d 805, 812, 191 Cal.Rptr. 452, 662 P.2d 910.)   This constructional rule applies to civil enforcement actions (Walsh v. Dept. Alcoholic Bev. Control (1963) 59 Cal.2d 757, 765, 31 Cal.Rptr. 297, 382 P.2d 337) and to environmental statutes (People v. Mobil Oil Corp. (1983) 143 Cal.App.3d 261, 276, 192 Cal.Rptr. 155).

In Mobil Oil, supra, the state sought to impose civil penalties for violations of provisions of the Health and Safety Code and regulations enacted pursuant thereto for violation of maximum standards for the volatility of gasoline sold as motor fuel.   In upholding a trial court's granting of a judgment at the close of a state's case, the Court of Appeal concluded that the civil enforcement statutes were penal in nature and that any ambiguity must be construed against the state.   There can be no doubt that Proposition 65 has penal aspects to it.   It provides for a “civil penalty not to exceed $2500 per day ․ in addition to any other penalty established by law.”  (§ 25249.7, subd. (b).)  The statute provides standing to the Attorney General, district attorneys, certain city attorneys as well as to private “bounty-hunter” enforcers to bring civil enforcement actions.  (§ 25249.7, subds. (c), (d).)

 The Attorney General's complaint unambiguously seeks “civil penalties of up to $2,500 per day for each violation” and seeks “civil penalties according to proof.”   Such penalties can be imposed both under section 25249.7 and under Business and Professions Code section 17206 (as to the second and fourth causes of action).   Thus, the ambiguity in this instance must, as a matter of law be resolved against the state and in favor of the defendants.⁹

V.

We conclude that, reading Proposition 65 as a whole, the prohibition with which we deal refers to discharges into the environment of listed chemicals known to cause cancer or reproductive toxicity and which find their way directly or by migration to a present or future community water supply source.   It does not apply to a common household plumbing fixture.   As the trial court aptly pointed out, the “discharge” provision “deals with where the drinking water originates ․ not to where it is consumed․”  (Bold in original.)   We also join with the trial court in observing, “[I]t is the duty of this court to interpret the statute as it stands and not how it were better written in some people's view, even if the Court were in their company.”   The petition for writ of mandate is denied.

By ignoring a most fundamental principle of statutory construction—that ambiguous words must be construed in a manner consistent with the objective of the entire enactment in which they appear—and by inventing new principles, the majority defeats the intent of California voters to rigorously restrict the toxic contamination of our drinking water.

Indifferent to the purpose of Proposition 65 revealed by its text, the majority instead selectively relies on legislative history and ballot arguments which do not in fact indicate what the voters may have thought was meant by the phrase “any source of drinking water.”   Among its many departures from conventional judicial practice, the majority claims a private communication to a trade organization from an administrative “science advisor” is an “authoritative interpretation” of Proposition 65 even though the letter does not purport to provide any such interpretation and the “interpretation” the court imputes to the letter has been repudiated by the responsible state agency.   As the cap to its extraordinary exegetical enterprise, the court labels Proposition 65 a “penal statute” and invents and applies a broad new rule of narrow construction that, if allowed to stand, will unjustifiably obstruct enforcement of many environmental laws.

I.

The majority states that “the unambiguous, straight-forward language of the Act, its history and the implementing regulations make it clear that section 25249.5 is limited to prohibiting the discharge or release of listed chemicals into California lakes, rivers, streams, ground waters, and man-made storage facilities and aqueducts—the origins of drinking water.”  (Maj. op., at p. 906, fn. omitted, italics in original.)

The language in question is anything but “unambiguous and straight-forward,” for if it were my colleagues would not need to look to the legislative history and implementing regulations to find its meaning.   The majority accepts defendants' assertion that the meaning of the phrase “source of water” is “plain” and that there is therefore no room for judicial interpretation, but nonetheless relies on the (far fetched) extrinsic aids defendants conjure up to support the supposedly unnecessary interpretation they alternatively urge.

The plain meaning rule has no application to this case because reasonable minds can differ as to the meaning of the ambiguous phrase “any source of drinking water.”   Webster's most pertinent definitions of the word “source” are “a point of origin or procurement”—using a fountain as an example—or “a point of emanation.”  (Webster's Third New International Dictionary (1970) p. 2177.)   As an abstract proposition, it is just as plausible to conclude, as the Attorney General contends, that voters believed the faucets from which drinking water emanates and is most commonly procured is a “source” thereof as it is to accept defendants' view that the word refers to physical bodies of water in the natural environment.   Indeed, other definitions might also be reasonable.   The best proof of the ambiguity is that the definition adopted by the majority is different not only from the one urged by the Attorney General but also from that insisted upon by defendants, who maintain that “source of water” refers only to “California's lakes, rivers, streams and ground water,” not to “man-made” facilities (Maj. op. at p. 906, emphasis in original.)   By excluding plumbing fixtures from those man-made components of a water delivery system it conceives to be subject to the discharge prohibition, the majority creates uncertainty and confusion as to the reach of Proposition 65.  “Man-made storage facilities and aqueducts” are no more “the origins of drinking water” than a household faucet or any other essential component of a water delivery system.

I agree with my colleagues that the definitional problem this case presents is not resolved by the definitions of present and future sources of water set forth in section 25249.11, subdivision (d).   Those statutory definitions do not eliminate the ambiguity that exists as to whether “a present source of drinking water,” like a future source, consists only of a physical body of water in the natural environment, or whether it may also include the system in place for distributing such water to present users.   As the majority points out, the trial court concluded that the first definition of “source of water” set forth in section 25249.11, subdivision (d) (i.e., a “present source of water”) must be qualified by the second (i.e., “water which is identified or designated in a water quality control plan adopted by a regional board as being suitable for domestic or municipal uses”), because “[i]f the ‘present source’ definition stands alone and unqualified, it simply creates a tautology.”   The majority correctly rejects this reasoning but neglects to explain why.

By unjustifiably conflating the definitional categories (on the unexplained assumption that both refer to the same type of water “source”), the trial court begged the question tendered by this case.

It is readily apparent that the drafters of Proposition 65 never contemplated the definitional question before us.   Nor did the voters.   Where, as here, the question which is raised on a statute never occurred to those who drafted or enacted it our job is not to determine what they meant, but to discern what they would have intended had the unanticipated question been considered.

II.

“There is no surer guide in the interpretation of a statute than its purpose when that is sufficiently disclosed;  nor any surer mark of over solicitude for the letter than to wince at carrying out that purpose because the words used do not formally quite match with it.”  (Federal Deposit Ins. Corporation v. Tremaine (2d Cir.1943) 133 F.2d 827, 830 [Hand, J.].)

The purpose of Proposition 65, which was set forth in its entirety in the voter pamphlet, could not have been more clearly enunciated.   The preamble commences with a declaration that “[t]he people of California find that hazardous chemicals pose a serious potential threat to their health and well-being, that state government agencies have failed to provide them with adequate protection, and that these failures have been serious enough to lead to investigations by federal agencies of the administration of California's toxic protection programs.”

To address this threat, the preamble declares the rights of the people as follows:

“(a) To protect themselves and the water they drink against chemicals that cause cancer, birth defects, or other reproductive harm.

“(b) To be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm.

“(c) To secure strict enforcement of the laws controlling hazardous chemicals and deter actions that threaten public health and safety.

“(d) To shift the cost of hazardous waste cleanups more onto offenders and less onto law-abiding taxpayers.”  (Italics added.)

The meaning we assign the phrase “source of drinking water” must, if at all possible, effectuate the desire of the voters to obtain the foregoing protections.   As Sutherland states, “[p]reambles generally serve a useful purpose when [as in this case] the legislation attempts to regulate a new field of activity where the scope and the purpose of the act may be unknown to many․”  (1A Sutherland Stat Const. § 20.05 (5th Ed), p. 88.)   A policy section such as this “states the general objectives of the act so that administrators and courts may know its purposes.   This is frequently significant where [as is also the case here] the enforcement of the act depends principally upon administration and the administrative officers have not participated in the preparation of the legislation.  [¶] The policy section like the preamble is available for the clarification of ambiguous provisions of the statute․”  (Id., § 20.12, p. 97.)   The majority's notable failure to look to this overt and revealing statement of purpose is as inexplicable as its preoccupation with unreliable secondary sources.

It is elemental that “ ‘the objective sought to be achieved by a statute as well as the evil to be prevented is of prime consideration in [the word's] interpretation, and where a word of common usage has more than one meaning, the one which will best attain the purposes of the statute should be adopted, even though the ordinary meaning of the word is thereby enlarged or restricted and especially in order to avoid absurdity or to prevent injustice.’ ”  (People ex rel. S.F. Bay etc. Com. v. Town of Emeryville (1968) 69 Cal.2d 533, 543–544, 72 Cal.Rptr. 790, 446 P.2d 790, quoting People v. Asamoto (1955) 131 Cal.App.2d 22, 29, 279 P.2d 1010.)   In the service of this settled principle, the Supreme Court and our own court have expanded the meaning of words considerably further than is necessary in this case in order to accept the broader interpretation urged by the Attorney General.

For example, in Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 104 Cal.Rptr. 761, 502 P.2d 1049, the Supreme Court was required to construe the word “project” in a statute which requires local government agencies to file an environmental impact report “ ‘on any project they intend to carry out which may have a significant effect on the environment․’ ”  (Italics added.)   The trial court held the statute inapplicable to private construction because such activities were not carried out by government agencies and therefore did not constitute “projects” within the meaning of the statute.   The Supreme Court reversed, rejecting the contention that, as used in the statute, “project” plainly meant “public works.”   “Because the legislative intent provisions dictate that we give a broad interpretation to the act's operative language, we begin from that vantage point.   Once a particular legislative intent has been ascertained, it must be given effect ‘ “even though it may not be consistent with the strict letter of the statute.” ’  [Citation.]  As we stated nearly a half century ago in In re Haines (1925) 195 Cal. 605, 613, 234 P. 883 ․:  The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the legislature apparent by the statute;  and if the words are sufficiently flexible to admit of some other construction it is to be adopted to effectuate that intention.   The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.”   (Friends of Mammoth, supra, at p. 259, 104 Cal.Rptr. 761, 502 P.2d 1049.)   On the basis of this principle, the Supreme Court determined in Friends of Mammoth that the word “project” was “sufficiently flexible” so as to include private activities, despite placement of the word in a sentence which, if considered in isolation, suggested that it referred only to activities of local governmental agencies.   The court reasoned that such an interpretation was necessary to effectuate the broad environmental purposes of the act.

We relied on Friends of Mammoth in Leslie Salt Co. v. San Francisco Bay Conservation etc. Com., (1984) 153 Cal.App.3d 605, 200 Cal.Rptr. 575, in which we were called upon to construe the McAteer–Petris Act, which created the San Francisco Bay Conservation and Development Commission (BCDC) and defined its jurisdiction and powers.   A section of that act authorized BCDC to issue a cease and desist order and impose civil penalties against any person who “has undertaken, or is threatening to undertake, any activity” requiring a permit, such as the placement of fill, without a permit to do so.   Over a period of years several hundred tons of fill had been placed on Leslie's property by unknown third parties.   The trial court ruled that the McAteer–Petris Act “ ‘does not contain any authority for BCDC to issue a cease and desist order against a person other than one who actually placed the fill upon Leslie's land.’ ”  (Id., at p. 611, 200 Cal.Rptr. 575.)   We reversed, holding that “one who ‘has undertaken, or is threatening to undertake’ the proscribed activities refers not simply to one responsible for the actual placement of unauthorized fill but also to one whose property is misused by others for that purpose and who even passively countenances the continued presence of such fill on his land.”  (Id., at p. 618, 200 Cal.Rptr. 575.)   We adopted this broad interpretation of the statute because the narrow literal construction adopted by the trial court “would ‘frustrate the effectiveness of the act’ (Friends of Mammoth v. Board supra, at p. 263, 104 Cal.Rptr. 761, 502 P.2d 1049) by materially impairing BCDC's ability to prevent and remedy haphazard and detrimental filling of the Bay.  [Citations.]  Unless the responsible person were ‘caught in the act’ of placing the fill, or the landowner were proved to have authorized its placement by others, BCDC would be unable to order removal of the fill.   Such a narrow rendition of BCDC's authority ascribes no significance to a landowner's ability to prevent the placement of fill on his land by others and, if adopted by the courts, would diminish the incentive for landowners to manage their properties so as to reduce the prospect of illegal fill, a result that is also clearly repugnant to the legislative purpose.”  (Leslie Salt Co. v. San Francisco Bay Conservation etc. Com., supra, 153 Cal.App.3d at p. 617, 200 Cal.Rptr. 575.)

Cases such as Friends of Mammoth and Leslie Salt demonstrate that, while “[c]onsequences cannot alter statutes, [they] may help to fix their meaning.”  (In re Rouss (N.Y.1917) 116 N.E. 782, 785, 116 N.E. 782 [Cardoza, J.].)   The narrow definition of “source of drinking water” adopted by the majority is untenable because it frustrates the purpose of Proposition 65.   Indeed, the holding that plumbing fixtures essential to the delivery of drinking water are not within the ambit of the discharge prohibition virtually emasculates Proposition 65 as a tool to prevent the single greatest source of toxic contamination of drinking water that now exists in this nation.

Amici curiae, the American Public Health Association and the Alliance to End Childhood Lead Poisoning, have provided this court numerous scientific studies establishing that lead is the most ubiquitous toxic substance of environmental origin in the United States today.   Even extremely low levels of lead in drinking water presents serious toxicological hazards to human health, and the populations most at risk are children and pregnant women, as surrogates for fetuses.  (See, e.g., U.S. Dept. of Health & Human Services, Agency for Toxic Substances and Disease Registry, The Nature and Extent of Lead Poisoning in Children in the United States:  A Report to Congress (1988).)   According to the Environmental Protection Agency (EPA), the adverse effects of such exposure include “[d]eficits in IQ and other measures of cognitive function, such as attention span․  Slowed peripheral nerve conduction․  Deficits in mental indices․  Low birth weights and decreased gestational age, factors that may influence early neurological development․  Early childhood growth reductions․”  56 Fed.Reg. at pp. 26467–26468 (June 7, 1991).

Drinking water, one of the leading sources of lead in the bloodstream, typically contributes 20 percent of total lead exposure for the average American.  (U.S. Environmental Protection Agency, Fact Sheet:  National Primary Drinking Water Regulations for Lead and Copper (May 1991), p. 4.)   Certain populations are even more adversely affected.   The EPA has shown, for example, that more than 85 percent of the blood lead found in bottle-fed infants may derive from consumption of baby formula made with lead contaminated drinking water.  (56 Fed.Reg. 26460, 26470 (June 7, 1991).)   A more recent study found that the primary source of lead in the bloodstreams of about 15 percent of lead poisoned infants was from lead-tainted drinking water used in formula.  (Shannon & Graef, “Lead Intoxication in Infancy”, Pediatrics, vol. 89, No. 1, pp. 87–89 (Jan.1992).)   The study concluded that “[a]n estimated 10,400,000 children are exposed to significant amounts of lead through drinking water and 241,000 children younger than 6 years have [even higher] levels ․ as a result of drinking such lead-contaminated water.”   (Id., at p. 89, fns. omitted.)

According to a 1993 study conducted under the aegis of the National Academy of Sciences, “[b]rass faucets and other fixtures containing alloyed lead at various percentages, even below current permissible percentage (8%), can contribute to tap-water contamination.  [Citations.]”  (National Academy of Sciences, Committee on Measuring Lead in Critical Populations, Measuring Lead Exposure in Infants, Children and Other Sensitive Populations (1993) p. 129.)   The study referred to findings “that newer brass faucets could contaminate standing water closest to the fixtures (less than 250 ml) at [levels exceeding] an action concentration promulgated by EPA (1991).”  (Ibid.)  The National Academy of Sciences study also pointed out that “[i]n public facilities that serve young children and other sensitive populations, such as kindergartens and elementary schools, additional exposure to lead in tap water can occur.   [Citations.]  Patterns of water use in schools potentially can allow greater exposure than in homes.   For example, lead leaching is at its maximum into standing water, i.e., water generated overnight, during weekends, and during holiday and summer vacation periods.   Water contamination in schools and the like can occur in water coolers and fountains, as well as the expected core plumbing and fixtures [Citations].”  (Ibid.)

The majority's conclusion that the plumbing fixtures that cause such contamination—and the majority's holding applies to more than just faucets—are not within the discharge prohibition of Proposition 65 prevents the use of that initiative to protect Californians against lead poisoning.   Unlike a ceramic cup (which may also leach lead into drinking water) or other receptacle used to hold water or to drink from, plumbing fixtures are essential components of a complete water distribution system.¹  Elimination of chemicals that cause cancer, birth defects, or other reproductive harm from the surface and groundwaters of the state, as prescribed by Proposition 65, will be altogether in vain if the water thereby purified can be contaminated by integral elements of the water delivery system.

Acknowledging “that there may be sound scientific reasons to ban and ultimately eliminate brass fixtures from household and public accommodation water supply systems” (Maj. op. at p. 906), the majority concludes that Proposition 65 “did not do so” (id., at p. 906) because it was not explicit on the point.   The view that a statutory meaning not explicitly declared cannot be found was famously critiqued by Holmes:  “We recognize that courts have been disinclined to extend statutes modifying the common law beyond the direct operation of the words used, and that at times this disinclination has been carried very far.   But it seems to us that there may be statutes that need a different treatment.   A statute may indicate or require as its justification a change in the policy of the law, although it expresses that change only in the specific cases most likely to occur to the mind.   The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed.   The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say:  We see what you are driving at, but you have not said it, and therefore we shall go on as before.”  (Johnson v. United States (C.C.D.Mass.1908) 163 Fed. 30, 32, op. of Holmes, J., on circuit.)

As stated in AFL–CIO v. Deukmejian (1989) 212 Cal.App.3d 425, 260 Cal.Rptr. 479, “Proposition 65 clearly reflects the result of public dissatisfaction with the state's efforts at protecting the people and their water supply from exposure to hazardous chemicals.  ‘[I]t is not our function to pass judgment on the propriety or soundness of [the Act].   In our democratic society in the absence of some compelling, overriding constitutional imperative, we should not prohibit the sovereign people from either expressing or implementing their own will on matters of such direct and immediate importance to them as their own perceived safety.’ ”  (Id., at p. 441, 260 Cal.Rptr. 479, quoting Brosnahan v. Brown (1982) 32 Cal.3d 236, 248, 186 Cal.Rptr. 30, 651 P.2d 274, italics added.)

The majority's indifference to the purpose of the discharge prohibition and its rejection of a reasonable interpretation that would effectuate that purpose is the chief flaw in the majority opinion.   It is by no means the only flaw, however.

III.

Refusing to look to the text of Proposition 65 to find its purpose, and to construe the ambiguous words at issue so as to effectuate that purpose, the majority instead discerns the meaning of the words from two extrinsic sources:  (1) the arguments for and against Proposition 65 set forth in the ballot pamphlet and (2) the views of the administrative agencies and boards responsible for implementation of the measure.

A.

The arguments set forth in the ballot pamphlet, even the portions the majority ostentatiously italicizes, are simply unilluminating.   They do not show whether proponents of Proposition 65, or the voters, ever considered whether the phrase “any source of drinking water” refers only to natural bodies of water or whether it also includes that standing in or passing through a water delivery system.   While the ballot pamphlet arguments do not make it clear that “any source of drinking water” includes water located in plumbing fixtures and other elements of a water delivery system (including the “man-made storage facilities and aqueducts” the majority includes in its definition of “present source of drinking water”),² neither do they exclude that possibility.   The support the majority finds in the ballot pamphlet is largely manufactured.   For example, the majority relies on the concluding statement of the proponents of Proposition 65, which stated:  “Effectively, it tells businesses:  Don't put these chemicals into our drinking water supplies.”   By italicizing the word “supplies,” (Maj. op., at p. 908) the majority produces a reason to think the Act was not intended to apply to plumbing fixtures.   (Maj. op. at pp. 908–09.)   It would, however, be just as easy to find the opposite intention by instead italicizing the words “drinking water,” which is invariably obtained from plumbing fixtures.

The majority's procrustean manipulation of extrinsic evidence is also illustrated by its rejection of materials that contradict its conclusion that “the proponents [of Proposition 65] did not believe the Act included a ban on brass plumbing fixtures.”  (Maj. op., at p. 908.)   As the Attorney General points out, one of the major opponents of Proposition 65 (Californians Against the Toxics Initiative) issued campaign literature stating that because the initiative applied to lead, “[c]ommonly used construction materials could be effectively eliminated from use,” including “piping system[s] [which] discharge ․ small amounts of a listed material.”   The majority repudiates this evidence despite the fact that the campaign literature in which the concession appears was judicially noticed by the trial court in another Proposition 65 case, AFL–CIO v. Deukmejian, supra, 212 Cal.App.3d 425, 260 Cal.Rptr. 479.   Although the appellate court did not in that case find it necessary to rely on such evidence in order to affirm the judgment, it acknowledged that “courts have on occasion resorted to such extrinsic materials as an aid in interpreting ambiguous language in statutes or initiative measures.”  (Id., at p. 436, fn. 4, 260 Cal.Rptr. 479, citing, as examples, Carlos v. Superior Court (1983) 35 Cal.3d 131, 144, fn. 12, 197 Cal.Rptr. 79, 672 P.2d 862, disapproved on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1115, 240 Cal.Rptr. 585, 742 P.2d 1306;  People v. Tanner (1979) 24 Cal.3d 514, 520, fn. 4, 156 Cal.Rptr. 450, 596 P.2d 328;  and Goodman v. County of Riverside (1983) 140 Cal.App.3d 900, 906, 907–908, and fns. 3–5, 190 Cal.Rptr. 7.)   The majority refuses to look to this evidence for two unpersuasive reasons.

The majority reasons, first, that reliance on such evidence “could encourage misleading interpretations being advanced in campaign literature designed to skew future interpretation.”  (Maj. op. at p. 908, fn. 6.)   The “danger” opponents of a measure would unjustifiably concede its expansive reach in order to “skew” judicial interpretation does not exist, because the interpretation such a concession would justify conflicts with their interests.   This is precisely why such admissions against interest are reliable.   In American Tobacco Co. v. Superior Court (1989) 208 Cal.App.3d 480, 255 Cal.Rptr. 280, we relied on a concession by the California Trial Lawyers Association (CTLA) that an ambiguous provision of a tort reform measure would prejudice one of its interests in order to find the meaning of the provision.   In doing so, we explained that “[t]hough the statement of a representative of a special interest group, such as CTLA, is ordinarily an unreliable indication of the purpose of legislation affecting the interests of that group, this is not so where, as here, the statement concedes a purpose inimical to the goals of the interest group.”  (Id., at p. 488, 255 Cal.Rptr. 280, italics added.)

The majority also claims there is no need to look to the campaign literature relied upon by the Attorney General because, as stated in AFL–CIO v. Deukmejian, supra, 212 Cal.App.3d at page 436, 260 Cal.Rptr. 479, footnote 4, “ ‘the Act and the ballot arguments provide the dispositive interpretive information.’ ”  (Maj. op., at p. 908, fn. 6, quoting.)   However, while the Act and the ballot arguments dispositively answered the question presented in AFL–CIO v. Deukmejian—whether the Governor had a ministerial duty to place certain toxic chemicals on the published list Proposition 65 required—neither the Act nor the ballot arguments provide any dispositive information regarding the entirely different and much more difficult question posed in this case.

B.

The suggestion in the majority opinion that the administrative agencies charged with implementing Proposition 65 have authoritatively rejected the broad definition of section 25249.5 urged by the Attorney General is simply untrue.

The administrative agencies in question—the Health and Welfare Agency and the Office of Environmental Health Hazard Assessment (OEHHA) ³ —have never declared that a faucet or other portion of a water delivery system and the water within such a fixture is not a “source of drinking water” within the meaning of section 25249.5.   The pertinent administrative regulations simply declare that, for purposes of Proposition 65, “[t]he term ‘water’ includes both surface and ground water.”  (Cal.Code Regs., tit. 22, § 12201, subd. (e)(1).)   This ambiguous definition arguably embraces and certainly does not exclude water—derived from surface or groundwater—passing through plumbing fixtures and other man-made components of a water delivery system.   Moreover, the regulations do set forth explicit exclusions from the regulatory definition.   Thus, for example, the regulations specify that chemical discharges prohibited by the Act “do[ ] not include the sale, exchange or other transfer of a chemical to a solid waste disposal facility.”  (Ibid.)  The failure to similarly exclude plumbing fixtures or the water they contain from the discharge prohibition must reflect the absence of any administrative intent to do so.

Precisely because the regulations implementing Proposition 65 did not exclude application to faucets or other plumbing fixtures, the Plumbing Manufacturers Institute (PMI), an industry group to which most defendants belong, made a request in 1988 for an administrative guideline exempting plumbing products from Proposition 65.⁴  Steven A. Book, Ph.D., the Science Advisor to the Secretary of the Health and Welfare Agency, who responded to this request, stated in a letter to PMI that the Agency “cannot adopt such a position.”   However, after explaining the reasons the Agency refused to adopt an administrative guideline exempting plumbing products, Dr. Book noted in his letter that “[t]he Agency has never taken the position that the leaching of chemicals from a private plumbing facility into water within the facility constitutes a discharge into a ‘source of drinking water.’   The term ‘source of drinking water’ appears to refer to the geographic sources of water, whether used as a present source of drinking water, or simply designated by a regional water quality control board as suitable for domestic or municipal use.”   My colleagues seize upon these two sentences, which they characterize as an administrative rejection of the Attorney General's interpretation of section 25249.5.

Dr. Book's unpublicized letter—which, as noted, rejected the request for a ruling exempting plumbing products from regulation under Proposition 65—does not even purport to constitute a considered and authoritative administrative interpretation of the phrase “any source of drinking water,” and Dr. Book had no apparent power to issue such a directive.   The OEHHA, the “lead agency” charged with administering the Act, pointed out in an amicus brief filed with the trial court that Dr. Book's letter is neither an “interpretive guideline” (a “draft regulatory proposal which has been published for the information, comment, and guidance of California businesses, law enforcement agencies and others concerned” (Cal.Code Regs., tit. 22, § 12102, subd. (b)), nor a “safe use determination” (“which interprets and applies the Act to a specific set of facts” (Cal.Code Regs., tit. 22, § 12102, subd. (c).))  Because the view set forth in Dr. Book's ambiguous letter was never made known to the interested public nor promulgated in the manner required by the Administrative Procedure Act, OEHHA correctly asserted that it merits no weight as an administrative interpretation.   The agency observed that granting substantial judicial deference to unpublicized letters from staff “would undermine the Agency's consciously chosen decision-making structure.”

The majority rejects this contention on the ground that Armistead v. State Personnel Board (1978) 22 Cal.3d 198, 204–205, 149 Cal.Rptr. 1, 583 P.2d 744 and Grier v. Kizer (1990) 219 Cal.App.3d 422, 435, 268 Cal.Rptr. 244, the cases upon which the administrative agency and the Attorney General rely, are “inapposite” because they apply only to the promulgation of new regulations, whereas Dr. Book's letter “simply interpreted and applied existing rules to a particular situation.”  (Maj. op. at p. 911.)   The majority misses the point and the relevance of the cases it dismisses.

Armistead, Grier and like cases emphasize that a major purpose of the Administrative Procedure Act (Gov.Code, §§ 11340 et seq., hereinafter “APA”) is to provide a public procedure whereby people who might be affected by proposed regulatory action may be heard on the merits of proposed rules.   (Armistead v. State Personnel Board, supra, 22 Cal.3d 198 at p. 204, 149 Cal.Rptr. 1, 583 P.2d 744;  Grier v. Kizer, supra, 219 Cal.App.3d at p. 435, 268 Cal.Rptr. 244;  accord, KFC Western, Inc. v. Meghrig (1994) 23 Cal. App.4th 1167, 1175–1176, 28 Cal.Rptr.2d 676.)   These cases do not suggest that significant administrative determinations defining rights and duties need not first be disclosed to the affected public.   As unjustifiably construed by the court, Dr. Book's letter does not merely interpret or apply Proposition 65 “to a particular situation,” as the majority says, but “interpret[s], or make specific the law enforced or administered” by an administrative agency with respect to a vast array of situations, and is therefore substantively within the APA definition of a “regulation.”  (Gov.Code, § 11342, subd. (b).) ⁵  As earlier noted, OEHHA follows well defined public procedures to provide interested members of the public an opportunity to participate in the development of authoritative constructions of Proposition 65 through a “Safe Use Determination” (Cal.Code Regs., tit. 22, §§ 12102, subd. (c), 12104) or an “Interpretive Guideline” request (Cal.Code Regs., tit. 22, § 12102, subd. (b)), both of which require public notice, publication in the California Regulatory Notice Register, and opportunity for public comment.   Dr. Book's personal views were admittedly never subjected to these or similar procedures, presumably because neither Dr. Book nor any other administrative officials who may have been aware of his letter anticipated that anybody, let alone a court, would reasonably believe a “science advisor's” private letter to a trade association constituted an “authoritative” construction of an unresolved and complicated legal question regarding a controversial measure of great public interest.   As stated in Armistead, an agency should not be permitted “to flout the APA by penalizing those who were entitled to notice and opportunity to be heard but received neither.”  (Armistead v. State Personnel Board, supra, 22 Cal.3d at p. 204, 149 Cal.Rptr. 1, 583 P.2d 744.)   To permit such a practice, the Supreme Court noted, “might help perpetuate the problem” of “ ‘ “house rules of the agency” ’ ” promulgated without public notice or opportunity to be heard.  (Id., at p. 205, 149 Cal.Rptr. 1, 583 P.2d 744.)

Ironically, the most apt explanation of why we should reject rather than rely on the “science advisor's” letter was provided by the author of the majority opinion in his recent opinion for our unanimous court in Hudgins v. Neiman Marcus Group (1995) 34 Cal.App.4th 1109, 41 Cal.Rptr.2d 46.   The issue in Hudgins was whether a retailer's policy of deducting from the wages of salespersons a pro rata share of commissions previously paid for returned merchandise violated Labor Code sections 221 and 400–410.  (Id., at p. 1117, 41 Cal.Rptr.2d 46.)   Independently of the litigation, the California Retailer's Association (CRA) had requested an opinion letter from the California Labor Commissioner regarding the lawfulness of a policy similar to that at issue in Hudgins.   The labor commissioner thereafter issued an opinion validating the policy, and this letter was relied upon by the trial court in Hudgins, which issued judgment for the retailer.   On appeal, the retailer claimed it was proper for the trial court to defer to the labor commissioner's opinion letter because of the settled rule “that the contemporaneous and practical construction of a statute by those whose duty it is to carry it into effect, while not controlling, is always given great respect.”  (Id., at p. 1125, 41 Cal.Rptr.2d 46.)   We rejected this claim.   As stated by Justice Phelan, the labor commissioner's letter was “the product of a nonadversarial, ex parte process conducted at the request of an organization that exclusively represents the interests of employers in the retail industry.   All of the cases on which [the retailer] relies for its deference argument are, thus, distinguishable in that in each case the agency's interpretation was the product of an adversary proceeding in which the administrative agency was either a party [citations], or had acted as an adjudicator in the proceedings under review [Citations].”  (Id., at pp. 1125–1126, 41 Cal.Rptr.2d 46.)

Exactly the same thing can be said of the letter in this case, except that here the letter was not even written by an administrative official authorized to interpret statutes, such as the Labor Commissioner, and has been repudiated by the administrative agency that possesses such authority.

Judicial willingness to be influenced by private opinions not subject to public review will destabilize the salutary administrative process that has developed in this state over many years.

IV.

The majority's theory that Proposition 65—and apparently any environmental law that imposes civil penalties—“must be construed against the state and in favor of the party against whom the statute is to be applied because the statute is penal in nature” (Maj. op. at p. 911) is unprecedented.   No California court has ever taken the position that an environmental law is penal in nature, and must therefore be narrowly construed, simply because it contains a provision allowing (but not requiring) civil penalties.⁶  Such a rule certainly never occurred to this court when we broadly construed the McAteer–Petris Act, even though the defendant in the case in which we did so was subjected to civil penalties of $6,000 for each day it remained in violation of that environmental statute.  (Leslie Salt Co. v. San Francisco Bay Conservation etc. Com., supra, 153 Cal.App.3d at p. 610, 200 Cal.Rptr. 575.)

The prime object of every law that is strictly penal is punishment.   The fundamental purpose of Proposition 65 is not punishment but protection against exposure to toxic chemicals.   Thus, it cannot be said that the only or even the primary purpose of the initiative was penal.  (Compare, Tos v. Mayfair Packing Co. (1984) 160 Cal.App.3d 67, 206 Cal.Rptr. 459, construing Agr.Code, § 62802.)   Moreover, the ambiguous words in question do not appear in a penalty clause.   In any event, as will be seen, the strict construction rule is not applied even to criminal statutes if the result would undermine the statutory purpose, as it does here.

The majority's description of Walsh v. Dept. of Alcoholic Bev. Control (1963) 59 Cal.2d 757, 31 Cal.Rptr. 297, 382 P.2d 337, as a “civil enforcement action” (Maj. op., at p. 911), though technically correct, is misleading.   The case involved the construction of Penal Code section 172, the sole purpose of which is to subject persons who sell intoxicating liquor within one mile of the University of California at Berkeley to fine or imprisonment.   The Supreme Court noted that the fact that the case nominally arose out of an administrative rather than a criminal proceeding does not obscure the reality that the criminal statute under review was fundamentally penal, and therefore should be construed and applied “ ‘as favorably to the defendant as the language of the statute and the circumstances of its application may reasonably permit.’ ”  (Id., at pp. 764–765, 31 Cal.Rptr. 297, 382 P.2d 337;  quoting Chessman v. Superior Court (1958) 50 Cal.2d 835, 843, 330 P.2d 225.)   Needless to say, we are not in the present case dealing with such a purely penal statute.

The sole environmental case the majority relies upon is People v. Mobil Oil Corp. (1983) 143 Cal.App.3d 261, 192 Cal.Rptr. 155, which does not genuinely stand for the principle for which it is offered;  indeed, the case does not even involve the construction of a statute.  Mobil Oil was an action to recover civil penalties for alleged violations of laws and regulations establishing maximum standards for the volatility of motor fuel.   At issue was the meaning of a regulation of the Air Resources Board (ARB) which prohibited the selling of gasoline having a Reid Vapor Pressure greater than nine pounds per square inch as determined by precise testing procedures mandated in an ARB regulation.   The regulation explicitly stated that “ ‘[g]ross errors can be obtained in vapor pressure measurements if the prescribed procedure is not followed carefully.’ ”  (Id., at p. 265, 192 Cal.Rptr. 155.)   Evidence adduced at trial showed that in testing the defendants gasoline, the ARB's investigators and technicians deviated from some of the specific testing requirements.   The ARB maintained that these deviations were “ ‘marginal,’ ‘minimal,’ or ‘not significant’ in their impact on the [ ] tests.”  (Id., at p. 266, 192 Cal.Rptr. 155.)   The trial court disagreed, finding that some of the departures from the mandated testing procedures were “ ‘substantial’ and ‘meaningful;’  ․ [and that having failed to make the required showing] the plaintiff's case must fall for want of fundamental proof.”  (Ibid.)  The ARB argued that its testing specifications “should not be construed literally and that the several variations, deviations, departures, and substitutions which they made should not cause [their] case to fall.”  (Id., at p. 276, 192 Cal.Rptr. 155.)   The Court of Appeal rejected this argument, explaining that “[m]anufacturers who are to be held to standards of compliance are entitled to testing criteria that they can rely upon with certainty.   The procedures should be rational and unequivocally demonstrable.   Compliance should be based upon objective measures rather than the subjective opinions of human beings.”  (Ibid.)  Emphasizing that the scientific method the ARB adopted left “no room for variations” (id., at p. 277, 192 Cal.Rptr. 155) the court felt the agency “was bound by that method” even though it could have adopted a less demanding method.  (Ibid.)

Mobil Oil stands only for the proposition that an appellate court should not set aside the factual finding of a trial court regarding “a highly technical subject” (id., at p. 276, 192 Cal.Rptr. 155) by relaxing the scientific testing procedures adopted by the regulatory agency.   Though there is confusing language in the court's opinion referring to the narrow construction of penal statutes ⁷ , it is pure dicta because, as noted, the case does not involve the construction of a statute.⁸

Finally, even where it is applicable, the narrow construction rule has never heretofore been used to trump the transcendent principle that ambiguous words are to be construed so as to advance the purpose of the statute in which they appear.   Such use of the rule of strict construction has been repudiated even in criminal cases by the United States Supreme Court and by our own Supreme Court.   As stated in United States v. Brown (1948) 333 U.S. 18, 68 S.Ct. 376, 92 L.Ed. 442, “[t]he canon in favor of strict construction is not an inexorable command to override common sense and evident statutory purpose.   It does not require magnified emphasis upon a single ambiguous word in order to give it a meaning contradictory to the fair import of the whole remaining language.”  (Id., at pp. 25–26, 68 S.Ct. at 380, quoted with approval in People v. Hallner (1954) 43 Cal.2d 715, 721, 277 P.2d 393.) ⁹

The rule that penal statutes should be narrowly construed “does not justify ․ a restrictive interpretation of the objectives of the legislature.”  (3 Sutherland Stat Const, § 60.04, (5th Ed) p. 163, italics in original.)   It is the most elemental principle that, “when interpreting a statute, if its provisions are unclear, its purpose is paramount:  we ‘should ascertain the intent of the Legislature so as to effectuate the purpose of the law.’ ”  (People v. Davis (1981) 29 Cal.3d 814, 828, 176 Cal.Rptr. 521, 633 P.2d 186, quoting Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672.)   The objectives of Proposition 65 could not be clearer;  and the intent of the voters can most accurately be discerned in the light of that lodestar.

V.

The majority criticizes the Attorney General for failing to explain “how this case can be both a ‘discharge’ case and ‘warnings' case.”  (Maj. op. at p. 906, fn. 4.)   The majority says that “[i]f it is the former and the relief sought is a ban on the sale of brass plumbing fixtures, the ‘warnings' claim would be irrelevant.”  (Ibid.)  The majority apparently adopts defendants view that the discharge prohibition applies only to surface and groundwaters and the warning requirement applies only to consumer products, such as plumbing fixtures.   In defendants' view, the Act gives the State the power to absolutely prohibit discharges into sources of drinking water because citizens cannot protect themselves from such contamination even if aware of the danger.   On the other hand, it is argued, the warning requirement applies in circumstances in which informed consumers are able to protect themselves against the risk of exposure, either by not using the product or taking some other precaution.   Defendants argue that the warning requirement rather than the discharge prohibition applies to faucets because informed consumers can avoid the risk that may be presented by a lead-leaching faucet.

Defendants' assumptions are false.   The theory that the discharge prohibition applies only to surface and groundwater is correct only in the sense that virtually all drinking water derives from surface or groundwater.   Defendants are really arguing that the discharge prohibition applies only while water eventually to be used for drinking is still in the form of surface or groundwater.   But neither logic nor any provision of the Act requires that a toxic discharge into drinking water be countenanced simply because at the time of the contamination—immediately before consumption—the water was no longer on the surface or in the ground.   The statutory scheme also provides no rationale for suspending application of the discharge prohibition where the risk a particular discharge creates might be reduced by a warning.   Nor does language of the Act support the theory that consumer products are ipso facto exempt from the discharge prohibition and subject only to the warning requirement.   The fact that the warning requirement applies to consumer products that expose individuals to toxic chemicals does not render the discharge prohibition useless or inapplicable where, as we must assume is true here, actual use of the product (presumably by consumers, including children, who were either not warned or indifferent to the risk) effects adischarge of such chemicals into drinking water.¹⁰  Nor does the statutory scheme support defendants' theory that the discharge prohibition applies only in circumstances in which consumers forewarned of danger would nonetheless be unable to protect themselves.   Finally, the efficacy of the warning requirement with respect to the specific dangers of contaminated water that the discharge prohibition is calculated to eliminate raises factual questions never presented to nor resolved by the trial court and is not a basis of its ruling.

For the foregoing reasons, I believe the superior court erred in sustaining the demurrer to the first two causes of action.   Accordingly, I would issue a peremptory writ of mandate directing the trial court to vacate its order of May 5, 1994, and to instead issue a new and different order overruling the demurrer and directing defendants to answer the complaint.

APPENDIX A

Health and Welfare AgencyOFFICE OF THE SECRETARY1600 NINTH STREET, ROOM 450Sacramento, California 95814(916) 445–6951(916) 445–6900

December 1, 1988

Robin W. Grover, Esq.

Keck, Mahin & Cate

1730 Pennsylvania Avenue, N.W.

Washington, D.C. 20006–4706

Dear Mr. Grover:

Thank you for your letter to Thomas E. Warriner, Undersecretary of the Health and Welfare Agency, in which you requested an interpretive guideline exempting plumbing products from the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf.Code § 25249.5, et seq.).

The Agency has concluded that it cannot adopt such a position.

The Safe Drinking Water and Toxic Enforcement Act of 1986 (herein referred to as the “Act”) authorizes the identification of chemicals known to the state to cause cancer or reproductive toxicity, and prohibits persons in the course of doing business from (1) knowingly discharging or releasing such chemicals into water or onto or into land where the chemicals pass or probably will pass into a source of drinking water, and (2) knowingly and intentionally exposing any individual to such chemicals without first providing a clear and reasonable warning.   The Act does not apply to entities in their operation of a “public water system” as defined in section 4010.1 of the California Health and Safety Code.

APPENDIX A—Continued

It is your contention that “entity in its operation of a public water system” includes any piping or plumbing products connected to the system and, therefore, such products are also exempt from the Act.   We disagree.

Health and Safety Code section 4010.1, in pertinent part, defines “public water system” as a “system for the provision of piped water to the public for human consumption which has five or more service connections, or regularly serves an average of at least 25 individuals daily at least 60 days out of the year.”   The fact that the statute refers to “service connections” plainly establishes that the public water system is distinct from the private facilities of the water user.   There would be no “connection” at all to a public water system if that “system” included everything up to and including the tap.   Further, we are unaware that “service connection” has ever been located at the tap through administrative or judicial construction.

Nor are we persuaded that the measurement of contaminants at the tap to determine compliance with maximum contaminant levels describes the physical boundaries of a public water system.   There is usually no place between the tap and the service connection where a sample may be drawn, and sampling within the public water system may not accurately reflect the quality of the water delivered by the system.   Sampling water at the tap, therefore, appears to be nothing more than a rule of practical necessity.   Your contention attempts to make too much of it.

Additionally, we note that the 1986 amendment to the Federal Safe Drinking Water Act, which you cited, clearly makes a distinction between public water systems and other plumbing facilities, since it expressly applies to public water systems “or ” residential or non-residential plumbing facilities connected to those systems.  (42 U.S.C. § 300g–6.)   Thus, it appears that, under this federal law, public water systems have not been construed to include plumbing facilities beyond the service connection.

Simply as a matter of experience, a public water system generally exercises no control over the plumbing facilities to which it is connected.   When private plumbing facilities need repair, the user calls a plumber, not the public water system.   To construe “public water system” to include such plumbing facilities for purposes of the Act might be inconsistent with this fact.

Accordingly, the Agency declines to adopt the interpretive guideline which you propose.   However, the following points should be stressed:

1.  The Agency has never taken the position that the leaching of chemicals from a private plumbing facility into water within the facility constitutes a discharge into a “source of drinking water.”   The term “source of drinking water” appears to refer to the geographic sources of water, whether used as a present source of drinking water, or simply designated by a regional water quality control board as suitable for domestic or municipal use.

2. Section 12901 of title 22 of the California Code of Regulations now provides that no exposure would occur unless a listed chemical is detectable in the water.

3. Warnings may reflect the knowledge available.   For example, if leaching depends upon the characteristics of the water flowing through a plumbing facility, the warning, if necessary, may include such information.

4. Finally, we have heard of some plumbing suppliers who are developing products that will not have problems associated with lead exposures.   Clearly, avoiding the use of listed chemicals, or reducing their levels, is a good way to avoid the application of the Act.

        Sincerely,

        /s/Steven A. Book

        STEVEN A. BOOK, Ph.D.

Science Advisor to the Secretary

FOOTNOTES

1.   All statutory references are to the Health and Safety Code unless otherwise indicated.

2.   The first cause of action alleges violations of the discharge prohibition of section 25249.5;  the second alleges violations of the Unfair Competition Act (Bus. & Prof.Code, § 17200) based on violations of the discharge prohibition.   The third cause of action alleges violations of section 25249.6, the second of the two major operative provisions of Proposition 65, which prohibits any person in the course of doing business from knowingly and intentionally exposing, without prior clear and reasonable warning, any individual to any chemical known to the state to cause cancer or reproductive toxicity.   The fourth and last cause of action alleges violations of the Unfair Competition Act based on violations of the warning requirement referred to in the third cause of action.

3.   For a description of the function and operation of water quality control boards, see Attwater and Markle, Overview of California Water Rights and Water Quality Law (1986) 19 Pacific L.J. 957, 996–1015.

4.   It is important to observe that the real parties in interest have not challenged the “clear and reasonable warning” requirement of section 25249.6.   The Attorney General does not explain how this case can be both a “discharge” case and “warnings” case.   If it is the former and the relief sought is a ban on the sale of brass plumbing fixtures, the “warnings” claim would be irrelevant.

5.   The dissent contends we have ignored “a most fundamental principle of statutory construction” because we are “indifferent” to the purpose of Proposition 65.   Invoking support from such judicial giants as Oliver Wendell Holmes, Learned Hand and Benjamin Cardozo, and some judicial alchemy by stirring together Friends of Mammoth v. Board of Supervisors (1992) 8 Cal.3d 247, 104 Cal.Rptr. 761, 502 P.2d 1049 and Leslie Salt Co. v. San Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605, 200 Cal.Rptr. 575 (neither case has been relied upon or even cited by the parties), we are told that our decision “prevents the use of [Proposition 65] to protect Californians against lead poisoning.”  (Dis. opn., post, at p. 917.)   If the threat is so great and the remedy so clear, one must ask why it has taken so long since the passage of Proposition 65 for the proponents of the Act to seek to ban the sale and/or require the removal of brass plumbing fixtures.   Perhaps it is because even the proponents didn't believe the Act went that far—thus the need for some “judicial legislation.”   As we have noted, a decision of such magnitude must come from the electorate or the Legislature and not from judges in the guise of interpretation.   The court is an institution which is ill-suited to establish this kind of far-reaching social policy.

6.   The Attorney General asks that we look to the opposition campaign literature to infer an intent to include brass plumbing fixtures.  (Citing AFL–CIO v. Deukmejian, supra, 212 Cal.App.3d at p. 437, fn. 4.)   While courts have occasionally looked to such material, we believe courts should be cautious of doing so because reliance thereon could encourage misleading interpretations being advanced in campaign literature designed to skew future interpretation.   In any event, there is no need to do so in this case because “the Act and the ballot arguments provide the dispositive interpretive information.”  (Ibid.)

7.   The current “lead agency” for the implementation of Proposition 65, the Office of Environmental Health Hazard Assessment, has written directly to this court advising that, because the formal procedures for regulation adoption were not followed, the letter by Dr. Book “should not be given weight by the court.”   To the extent that the opinion letter is not supported by “formal procedures” for adoption, we agree that its weight is lessened.   Nevertheless, it does not mean that it must be totally discounted in our overall assessment of the significance of agency interpretation.   If it were the only expression of opinion on the definitional issue, we would not be inclined to give it dispositive effect.   In this case, however, it is simply one of the factors we consider in divining the meaning the voters intended the words “source of water” should have.

8.   The dissent's accusation that we have abandoned the position taken by this panel in its recent decision in Hudgins v. Neiman Marcus Group, Inc. (1995) 34 Cal.App.4th 1109, 41 Cal.Rptr.2d 46 cannot be ignored.   There is a world of difference between the very unusual circumstances under which the Labor Commissioner's opinion was promulgated as described in Hudgins and those relating to the December 1, 1988 opinion from the Secretary of the Health and Welfare Agency.   We attach the letter in its entirety as Appendix “A” and leave it to the reader to decide whether our partial reliance upon it “will destabilize the salutary administrative process that has developed in this state over many years.”   (Dis. opn., post, at p. 922.)

9.   In his petition for rehearing, the Attorney General contends we erroneously apply this principle.   He argues that it is only the “penalty clause” which must receive “the narrowest construction ․ to which it is reasonably susceptible in the light of its legislative purpose.”  (Hale v. Morgan (1978) 22 Cal.3d 388, 405, 149 Cal.Rptr. 375, 584 P.2d 512.)   We readily agree that application of the narrow construction rule, in the context of environmental protection enactments, should be limited to their penalty provisions.   We disagree that it is inapplicable to this case.   As to the discharge prohibition, the application of the “penalty clause” is directly and inextricably linked to the definition of “source of water.”   Certainly, that definition is as operative in this case as the vapor pressure definition of volatile petroleum products was in Mobil Oil—a definition which the court concluded had to be construed narrowly because that “case [was] based upon a penalty statute which imposes a substantial civil penalty—$500 for each vehicle to which the allegedly offensive gasoline is supplied or sold—$1,307,500 in the case at bench.”  (People v. Mobil Oil Corp., supra, 143 Cal.App.3d at p. 276, 192 Cal.Rptr. 155.)   Thus, we cannot agree that the rule of narrow construction is inapplicable.

1.   The trial court appears to have been impressed with defendants' argument that a faucet is indistinguishable from such a cup or other water receptacles, and that application of the discharge prohibition to faucets would therefore subject a broad spectrum of consumer products to the discharge prohibition without clear guidelines.

2.   This definition was presumably stimulated by the statement at oral argument of counsel for respondent Moen Inc., that the dumping of 100 lbs. of a toxic substance into the California Aqueduct would not violate Proposition 65 because the discharge prohibition does not apply to man-made structures.   In a subsequent letter to the court, counsel conceded that his statement was erroneous, not because the California Aqueduct is a man-made facility, but because it is regulated by the Central Valley Regional Water Quality Board.

3.   In 1987 the Health and Welfare Agency was designated by the Governor the “lead agency” which “may adopt and modify regulations, standards, and permits as necessary to conform with and implement the provisions of [Proposition 65] and to further its purposes.”  (§ 25249.12;  Executive Order D–61–87 (Jan. 6, 1987).)   The Health and Welfare Agency delegated that duty to the Health Hazard Assessment Division of the Department of Health Services, which at that time was within the Health and Welfare Agency.   In 1991, when the California Environmental Protection Agency was created, the Governor transferred “lead agency” responsibilities directly to the Office of Environmental Health Hazard Assessment Division, which had been transferred to this newly created agency.  (Exec. Order W–15–91 (July 17, 1991).)

4.   Interestingly, this 1988 request was based upon a legal theory different from that advanced by defendants in this litigation.   Instead of contending that a plumbing fixture or the water therein was not a “source of drinking water,” PMI relied upon the definition of “person in the course of doing business” set forth in subdivision (b) to section 25249.11, which provides that the phrase does not include “any entity in its operation of a public water system as defined in [Health and Saf.Code] Section 4010.1.”   PMI contended that “ ‘entity in its operation of a public water system’ includes any piping or plumbing products connected to the system and, therefore, such products are also exempt from the Act.”

5.   By comparison, Aguilar v. Association for Retarded Citizens (1991) 234 Cal.App.3d 21, 285 Cal.Rptr. 515, the case the majority relies upon, involved a construction of the words of a particular wage order promulgated by the Industrial Welfare Commission, which “did not create a new rule or policy.”  (Id., at p. 27, 285 Cal.Rptr. 515.)

6.   The leading American treatise on statutory construction cites only one opinion—that of an intermediate appellate court in Louisiana, for the proposition that an environmental statute that could result in the assessment of a civil penalty is for that reason penal in nature and must be strictly construed.  (3 Sutherland Stat Const, § 59.01, (5th Ed.) p. 92, fn. 6, citing In re Woodrow Wilson Const. Co. Inc. (La.App.1990) 563 So.2d 385.), which, unlike the present case, was an appeal from the actual assessment of a civil penalty.

7.   The opinion appears to distinguish between a penalty statute and a penalty clause, postulating that “When a Statute is Penal in Nature, Its Penalty Clause Should Be Construed Narrowly.”  (People v. Mobil Oil, supra, 143 Cal.App.3d at p. 276, 192 Cal.Rptr. 155, italics original, underscoring added.)   Elsewhere, the opinion quotes the formulation of the narrow construction rule adopted by the Supreme Court in Hale v. Morgan (1978) 22 Cal.3d 388, 405, 149 Cal.Rptr. 375, 584 P.2d 512 (Mobil Oil, supra, at p. 276, 192 Cal.Rptr. 155) and cites Walsh v. Dept. Alcoholic Bev. Control, supra, 59 Cal.2d at p. 765, 31 Cal.Rptr. 297, 382 P.2d 337, for the principle that the rule “is not rendered inapplicable merely because an action arises out of an administrative proceeding rather than a criminal prosecution.”

8.   The “penal statute” the court presumably had in mind was Health and Safety Code section 43016, which “establishes ‘․ a civil penalty of not to exceed five hundred dollars ($500) per vehicle․’ for violations of [Health and Saf.Code] section 43830 or any regulation of the ARB adopted pursuant thereto.”  (People v. Mobil Oil, supra, 143 Cal.App.3d at p. 265, 192 Cal.Rptr. 155.)   The meaning of these statutes was never at issue in Mobil Oil.

9.   Application of the strict construction rule in criminal cases, though well established, is also hard to square with Penal Code section 4, which provides that “[t]he rule of the common law, that penal statutes are to be strictly construed, has no application to this Code.   All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.”

10.   Enforcement of the discharge prohibition as to such a consumer product would render enforcement of the warning requirement unnecessary only if compliance with that prohibition eliminated the risks of exposure to which the warning requirement applies, which is not likely given the historical use of lead in pipes and other plumbing fixtures that remain in use.

PHELAN, Associate Justice.

SMITH, J., concurs.